648 A.2d 1177 (Pa. 1994), Commonwealth v. Brown

Citation:648 A.2d 1177, 538 Pa. 410
Opinion Judge:The opinion of the court was delivered by: Flaherty
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. John Wesley BROWN, Appellant.
Attorney:For Appellant: David Rudenstein, Esquire, For: J. W. Brown, Philadelphia.
Case Date:October 06, 1994
Court:Supreme Court of Pennsylvania

Page 1177

648 A.2d 1177 (Pa. 1994)

538 Pa. 410

COMMONWEALTH of Pennsylvania, Appellee,


John Wesley BROWN, Appellant.

Supreme Court of Pennsylvania.

October 6, 1994

Argued April 5, 1994.

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[538 Pa. 416] David Rudenstein, Philadelphia, for John Wesley Brown.

Catherine Marshall, Alan Sacks, Philadelphia, for Com.

Robert A. Graci, Harrisburg, for Atty. Gen.



FLAHERTY, Justice.

Appellant, John Wesley Brown, was convicted of first-degree murder and sentenced to death.

The record reflects the following facts which form the basis for appellant's conviction. On June 10, 1990, appellant and his father, Wesley Brown, who was then seventy-seven years old, were together in their home in Philadelphia. A quarrel between the two occurred over appellant's use of his father's car for "hacking," that is, an unlicensed taxi service. Appellant shot his father four times with a .38 caliber pistol and left him to bleed to death in their home. A neighbor who heard the shots called the victim's granddaughter; she in turn called her grandfather. Appellant answered the phone and told his niece that her grandfather was outdoors. Appellant placed a .38 caliber revolver next to his father's body and took $400 from his father's wallet, then drove off in his father's car. He disposed of the murder weapon by throwing it out the car window in Maryland en route to Georgia. Two days later appellant was stopped at a road check in Georgia; a computer check of appellant's driver's license disclosed that the license was expired, that the car was stolen, and that appellant was wanted in Pennsylvania for murder. Appellant admitted shooting his father, but claimed it was done in self-defense after his father pointed a .357 magnum pistol at him.

Following appellant's trial, the jury found him guilty of murder of the first degree, robbery, and possessing an instrument of crime. Following the penalty phase of the trial, the jury found that an aggravating circumstance existed, to-wit, [538 Pa. 417] that appellant had been convicted of a prior voluntary manslaughter; 1 the jury also found three mitigating circumstances, namely, that appellant had no significant history of prior criminal convictions, that he acted under extreme mental or emotional disturbance, and that he had some other evidence of mitigation. 2 In balancing the statutory factors, the jury concluded that the aggravating circumstance outweighed the mitigating circumstances, and unanimously reached a verdict of death. This appeal pursuant to 42 Pa.C.S. § 9711(h)(1) followed.

Appellant's first argument is that the evidence was insufficient to sustain the verdict of murder of the first degree. This is an issue we review in every capital case. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences favorable to the Commonwealth, a jury could find every element of the crime beyond a reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 271, 361 A.2d 282, 285-86 (1976). When a defendant presents evidence that he committed a killing in self-defense, the Commonwealth must disprove such a defense beyond a reasonable doubt. Commonwealth v. Samuel, 527 Pa. 298, 303, 590 A.2d 1245, 1247 (1991); Commonwealth v. Upsher, 497 Pa. 621, 624, 444 A.2d 90, 91 (1982). In keeping with these standards, the evidence was sufficient to sustain the verdict.

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Appellant frequently argued with his father over the use of the latter's car in the hacking business. On the eve of the murder, they quarreled once more, and the victim reported to the police that his car had been stolen. According to the victim's granddaughter, it was because he was afraid to stand up to his son and refuse him the use of the car.

[538 Pa. 418] In the early post-midnight hours of Monday, June 11, 1990, appellant went to his father's bedroom and shot him four times with a .38 caliber revolver. Medical evidence established that three of four bullets struck the victim, two in the chest and one in the arm, all of them travelling downwards through the victim's body. The bullets injured the victim's lung, aorta, bones and tissues, causing the victim to bleed to death in ten or fifteen minutes. There was a loaded .38 caliber revolver lying near the victim's head when the body was discovered. There was evidence that the gun did not belong to the victim, and, by implication, that appellant took it from his collection of weapons and placed it there after the shooting.

Appellant gave voluntary written statements to authorities in Georgia shortly after his arrest and nine days later when he returned to Pennsylvania after waiving extradition, in addition to his trial testimony. In the first statement, dated June 13, 1990, appellant claimed that when he entered the bedroom, his father had a .357 magnum pistol aimed at him, that he panicked, became angry, and fired his own .38 caliber revolver at the wall. He also admitted that he could have retreated safely through the nearby door if he had not been angry. In appellant's second pretrial statement given on June 22, 1990, he claimed that his father had a .357 magnum pointed at him and said, "I'm going to blow your brains out." Reacting out of anger, appellant started to fall out of the room, pulled his revolver and fired without aiming. At trial, appellant testified that he angrily followed his father to his bedroom during an argument. As he entered the bedroom, his father had a .38 pointed at him. "Instantaneously," acting "out of impulse, reaction," he "dropped to the floor," "spun around," "rolled ... trying to get out of his aim," pulled his own weapon and fired up from the floor without even looking. Then he "ran out of the room." He later explained, "After I fired, I sort of like stumbled out. I just like crawled out. I ran out." He testified that he was angry; he was scared; he was shaking; he was in shock; he was crying.

[538 Pa. 419] Minutes later, after he returned to the bedroom, the victim's granddaughter called, and he answered the phone, telling her that her grandfather was outdoors. In fact, the victim was lying on the floor bleeding to death while appellant was taking $400 from his wallet. Then he took his father's car, threw the murder weapon out the window while driving through Maryland, and was apprehended in Georgia.

On cross-examination, appellant testified as follows:

Q. Now, sir, you didn't call the police after you shot your father?

A. No, I didn't.

Q. You live right around the corner from the Albert Einstein Medical Center?

A. Yes.

Q. You didn't call 911 or anything to help your father?

A. No. I froze and I panicked.

Q. When you say you panicked and froze, you knew where you were going, didn't you.

A. I know where I was going. I was scared.

Q. You knew where you were going?

A. Yes.

Q. You thought about where you wre [sic] going, right?

A. I thought about it.

Q. You thought about taking the money from your father and you were able to think then, correct?

A. Yes.

On further cross-examination, asked to explain how, if appellant fired up from the floor, the bullets travelled downwards through the victim's body, as the medical examiner testified, appellant explained:

Q. Well, can you tell--

A. That's what he said, but he actually wasn't there. He wouldn't know.

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Q. He is a medical doctor, right?

[538 Pa. 420] A. Yes. You know, things happen, you know, he is not God or anything like that, you know, I was there. I didn't see my father hit the floor. I didn't see where I was shooting at.

On redirect examination, appellant placed the blame squarely on his father: "He just should never have pulled the gun on me in the first place. We had a simple argument. There was no reason for that to happen. If he hadn't pulled the gun, this wouldn't have happened. I just reacted out of anger. I reacted out of anger."

Appellant's attack on the sufficiency of the evidence is, in essence, a spurious claim that if his version of events were given credence, he killed in self-defense. In view of the conflicting physical evidence and expert testimony, and in view of the inconsistency of appellant's accounts, it is understandable that the jurors did not credit appellant's testimony. There was more than sufficient evidence to prove every element of the offense and to disprove the self-defense claim beyond a reasonable doubt.

Appellant's second argument is that he is entitled to a new trial as the result of ineffectiveness of trial counsel. The threshold inquiry in a claim of ineffective assistance of counsel is whether there is arguable merit to the claim that counsel's performance was substandard or deficient. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Counsel can never be found ineffective for failing to raise a meritless claim. Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992). If the claim has arguable merit, then the inquiry shifts to whether the course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992). If no such reasonable basis is found, then the client must show that counsel's action or inaction prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Moreover, the client has the burden of establishing counsel's ineffectiveness because counsel is presumptively effective...

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